Month: February 2016

by Allan F. Tatham, Professor at Facultad de Derecho, Universidad CEU San Pablo

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New Deal for the UK in Europe: Rewarding British particularism or Making Exceptionalism Acceptable?

And so British Prime Minister David Cameron, standing outside No. 10 Downing Street last Saturday, announced to a waiting nation (and Union) that he had wrested for the United Kingdom almost all of the concessions he had been negotiating on with his EU Member State partners. What had once seemed as an almost Herculean task to achieve and an unprecedented one at that, has led to agreement with his fellow colleagues (no doubt grudgingly for some) in the European Council. Yes, Cameron was thus able to recommend to the British people on 20th February 2016 to accept the results of his “historic” renegotiation and vote for “Bremain” this summer; yes, the European Council has expressly recognized the constitutional and legal existence of a two- or multi-speed Europe[ii]; and, yes, the EU has accepted the existence – once again but in a much stronger version this time – of British particularism, in other words “in Europe but not of Europe” so to speak.

In the months leading up to the February European Council meeting, commentators canvassed the various options open to the UK were PM Cameron to have instead recommended a “Brexit” following negotiations and which might still happen if the popular vote in the 23rd June 2016 referendum were to show a majority in favour of leaving the EU.[iii] Among the possibilities considered have been: (1) UK membership of the European Economic Area (“EEA”) through reapplying for membership of the European Free Trade Association (“EFTA”) which would create the scenario of “back to the future” for the country as it was an original founding EFTA state in 1960, leaving to join the then European Economic Community in 1973; (2) a series of bilateral agreements between the UK and the EU, following Switzerland, each agreement being separately negotiated although the format is subject reconsideration by the EU; and (3) the Turkish model including a customs union, free movement of goods, and limited movement of workers as well as forming a strategic partnership in areas of mutual interest. Yet all three options would leave the UK woefully exposed internationally and in a very much weakened bargaining position outside the EU although probably still within the World Trade Organisation.

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Umberto Eco passed away this week but his words shall remain very much alive. Apart from his literary and semiology brilliance, Eco was an accurate observer of the European reality. For him, the Erasmus Programme is a sexual revolution that makes us all Europeans. A sort of spirit we can sense from – and that moved Bertolucci into his piece – The Dreamers.

He was supportive of the integration since his early days as he believed in the fundamental unity of the European culture. Moreover, he stated: “it´s culture that cements European identity”.

– How exactly? One may ask imaginarily.
– “We have too many languages and cultures, indeed (…)Europe is a continent that was able to fuse many identities (…) We know there are books we have yet to read that will help us reflect on cultures different from our own. Little by little: that is how our European identity will become more profound.”

Lyrically enough, instead of emphasizing the euro-crisis (and he highly regarded the values of the internal market), he suggested to print the faces of Dante, Shakespeare, Balzac or Rosselini in our Euro notes.

Umberto Eco’s lifetime reminds us all that, we do live under a Union based on the rule of law, we do benefit from an internal market and, essentially, we must live up to being surrounded by multilingualism, by a plural culture. This is what our existence is about – enabling ourselves to endless possibilities through the others. Through translating ourselves – beyond communicating, we translate to perceive, to know, to feel, to comprehend. Through at last achieving tolerance as we have been underlining this February on UNIO’s blog.

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On 8th, September 2015, the Court of Justice of the European Union reached a decision that draws consequences from the case law Åkerberg Fransson, C-617/10, considering the standpoint of the protection of the financial interests of the European Union.

Mr. Ivo Taricco and other defendants, Italian citizens, were charged before the Tribunale di Cuneo (Italy), for having formed and organised during the fiscal years 2005 to 2009 a conspiracy to commit various offenses in relation to VAT. During their legal prosecution, several matters have arisen in the case causing delays in the process. Such delays can have serious consequences once the limitation period for each of the accused goes from six to seven years and even though that limitation period can be interrupted, it cannot be extended beyond a quarter of its initial duration (Articles 160 and 161, Italian Penal Code). According to the referring court, it is certain that all the offences will be time-barred before a final judgement can be delivered regarding the accused. The referring judge says that situations of “de facto impunity” in cases related to tax evasion are rather normal due to the mentioned Italian norms as they do not allow an extension of the limitation period in crimes such as the ones at stake. Being the criminal investigations, in most cases, of great complexity, often, the time-limit compromises an effective criminal prosecution. In practical terms, the statute of limitations regime in Italy can, actually, function as a “way out” for white collar crime offenders.

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From 11th to 21st, Feb. 2016, Berlin will be the European (and not only) movie capital as the 66th Berlinale Festival takes off. 128 countries, more than 400 films presented, over 30000 people involved and more than 330000 tickets sold. However, apart from that commercial, industry façade of the Festival, a deeper artistic side has also its seat on Berlinale. Sections such as Panorama, Forum, Culinary Cinema and NATIVe offer a different view of the seventh art: independent movies, new comers, experimental art and indigenous people story-telling, for instance. Berlinale Talents section intriguingly revolves around “The Nature of Relations”.

Nevertheless, the most impressive message of this year´s edition of the Festival is described by the Berlinale Director, Dieter Kosslick. He declares that the Festival is devoted to the refugees. In his words, “since the festival was launched in 1951, we have only had positive experiences with what is today known as “a culture of welcome”. Moreover the Berlinale would not exist if it were not for foreigners. The eleven days of the festival at Potsdamer Platz demonstrate how cultural diversity can celebrate a peaceful fest with great energy and verve.”

According to him, it is vital to follow Steinmeier´s principle of six eyes. “Each of us has our own perception of things, our own two eyes, and with each of them we should try to see the view of the other, to find a joint view, so to speak, so as to achieve, through a shift of perspective, a view shared by both sides (…). In the cinema the principle of six eyes is a matter of course. We look through a screen like we do through an open window into another world or we are right in the middle of it.”

Cinema and all arts are platforms to explore societal issues. They are a narrative of our lives and our time. His editorial urges us all to not misunderstand themes and that refugees arrival can carry out social tolerance (UNIO Blog’s motto for the time being, by the way. As should remain EU law’s. In fact, legal systems as a whole can take in many lessons.).

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Budgetary control, integration, sovereignty.

The budgetary control that the rules of the monetary Union demand from the Member States has given risen to some tension among some of the national Governments and Brussels. The most recent case (and let’s forget about what happened, and still happens, with Greece) regards Portugal. The new socialist Government, supported in the Parliament by Parties that always dealt uncomfortably with the idea and the dynamics of the integration process, is facing its first challenge with Brussels and the European Commission, regarding the Portuguese Draft Budgetary Plan for 2016.

As a matter of fact, the budgetary control (even if only understood as common supervision or monitoring of the internal budgetary decision is, effectively, a control) has the goal, in accordance with Article 126 TFEU, of “avoiding excessive deficits”. One should consider that, in the framework of monitoring that is attributed to the Commission by the same Article, this entity should intervene (and it should be stressed, within its “monitoring” role only) to identify and avoid, in terms of budgetary evolution and public debt, important deviations, within the criteria set out in Article 126(2)(a) and (b) TFEU. In the end, everything is built around the comparison between the programmed deficit and a certain benchmark rate in the relation between public debt and the national GDP (the “famous” 60% of that GDP in terms of public debt).

The Union is a “Union based on the rule of Law”. It pretends to be so with the (final) protection of rights and guarantees, as ensured by the European Court of Justice (ECJ). A Union of Law implies, evidently, the respect and the guarantee that the existent rules are effectively applied. In the case of the Union, the respect of the Primary Law, the Secondary Law, the fundamental praxis and legal acquis that support the dynamics of the integration. However, the reverse results in generating rules, also reasonable, within the context of the permanent balance relation between the Union and the Member States and, naturally, among those (and between each other). These relations must safeguard balance (isonomy) and ponderation, bearing in mind the goals of the integration process. In the end, there is a permanent negotiating process, a consensus dynamics that – even in the framework of the effective application of legal rules – is, naturally, in the foundations of a material “Union based on the rule of Law”.

That said, all actors have indeed to abide by the rules and this shall be done in good-faith (loyalty) even if, in extremis, those rules have to be feasible and balanced.

It is not whichever rule, regardless of the circumstances (and, in this case, the concrete Portuguese reality) that has to be implemented blindly and by hook or by crook. This also blocks the idea and dynamics of the “Union based on the rule of Law” and endangers the integration process. It is, however, inadmissible that some resort to the argument of “the national sovereignty” to criticise existent rules and to say even that the Portuguese Constitution “undoubtedly prevails” over the rules of the Treaties.

It is clear that, in the end, all will come to a solution through the dynamics of the negotiation, through the creation of balances, of bridges of consensus. No one will lose his face in political terms and the idea of respect of the existing legal framework will prevail. That is, ultimately, one of the lessons learned from the History of European Integration.

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